Estephan v Lynsey Finch and Ors - [2007] NSWDC 285 - NSWDC 2006 case summary — Zoe

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Estephan v Lynsey Finch and Ors

[2007] NSWDC 285

District Court of NSW|2006-03-06

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Court

District Court of NSW

Decision date

2006-03-06

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Judgment (380 paragraphs)

[1]

CITATION: Estephan v Lynsey Finch and Ors [2007] NSWDC 285

[2]

DECISION: Matter No: 1042/04 - Plaintiff: Estephan Estephan; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 2124/04 - Plaintiff: Charlene Estephan; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 2125/04 - Plaintiff: Joanne Estephan; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 2126/04 - Plaintiff: Joseph Azzi; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 2127/04 - Plaintiff: Mary Azzi; Verdict for the Plaintiff against the Defendants for damages to be assessed; Verdict for the First Cross Claimant (LCC) against the First and Second Cross Defendants for 20 per cent of the damages so assessed; Judgment for the Third Cross Defendant to the First Cross Claim against the First Cross Claimant; Order the First Cross Claimant to pay the costs of the Third Cross Defendant to the First Cross Claim; Verdict for the Second Cross Claimants against the Second Cross Defendant for 80 per cent of the damages so assessed; Matter No: 3797/04 - Plaintiff: Lynsey Finch; Verdict for the Plaintiff against the Defendant for 80 per cent of damages to be assessed; Judgment for the Cross Defendant against the Cross Claimant; Order the Cross Claimant to pay the Cross Defendant's costs; In each matter, I grant liberty to the parties to apply on 7 day's notice for any special costs orders including, if sought, an order for the interim assessment of costs.

[3]

CATCHWORDS: Fatal collision between a stationwagon and a tip truck towing a trailer at an intersection (modified T intersection) at Rossmore in Liverpool local government area - Six actions arising from this collision were heard together on question of liability - Ultimate issues were whether the driver of the tip truck and trailer (F) was negligent, whether the driver of the stationwagon (JE) was negligent and whether the local government body (LCC), the applicable road authority were negligent and, if more than one were negligent, apportionment of liability - Lengthy consideration of the history of the intersection - Lengthy reconstruction of and consideration of the collision - Consideration of the applicable speed limit at [14] to [29] - Australian Road Rules 21 and 25 and definition of "built-up area" - Immediate causes of the collision were held to be: (a) JE knew she had right of way at the intersection which she exercised by making a right hand turn. (b) F erroneously believed that he had right of way. (c) only when F perceived that JE was not going to yield way to him and was going to turn right across the path of F's truck did he apply his footbrake, braking hard enough to seek to avoid the collision. (d) when JE's stationwagon emerged on F's left, F tried to turn or veer right to avoid it, had he continued on a straight path or attempted to veer to the left, the collision would have been avoided - Lengthy consideration of lay and expert evidence concerning speed of F's truck. A number of experts assessed his initial speed as in excess of 90kph in an area where 60kph limit applied. Held F was driving at about 70kph when he first perceived the lights of JE's vehicle - Held: (1) F was negligent: (a) he failed to keep a proper lookout. He ought to have observed and heeded a modified T intersection warning sign. (b) he failed to keep left by steering his truck into the right side of the carriageway. (2) F was not negligent in driving at 70kph in 60kph zone because of confusion about the speed limit and the difficulty of determining whether this was a "built-up area" and matters considered between [14] and [29]. Breach of a road rule is not itself negligence: Tucker v McCann [1948] VLR 222 at 227, Brulhart v Jarman [1964] NSWR 1210. The effective cause of the collision was not speed but F's lack of awareness of the altered priority of the T intersection. (3) JE was not negligent. This was a classic case of an "agony of the moment" decision. Fleming, The Law of Torts, 9th ed. (1998) p 319. (4) LCC was negligent as a Give Way sign ought to have been erected at the intersection facing traffic approaching it in the direction F did, as (a) the modified T intersection sign was possibly ambiguous. (b) that sign could be misinterpreted. (c) this had been requested on a number of occassions since 1992 by neighbouring residents and by a local councillor in 1998. (d) had been proper road engineering practice since 1994, and alterations had been made to the intersection in 1996 and 1998. Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 at 214. (5) Liability apportioned 20 per cent to F and 80 per cent to LCC. Brodie v Singleton Shire Council (2001) 206 CLR 512 at 580, Liverpool City Council v Millet [2004] NSWCA 340 - 34 MVR 193. Argument that in an apportionment the Court should consider questions arising from different measures of damages rejected. Law Reform (Miscellaneous Provisions) Act 1946 s 5, Law Reform (Miscellaneous Provisions) Act 1965 s 9, Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 at 68, Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492, Josyln v Berryman [2003] HCA 34 at [124] - [128]

[79]

13.10 Collision 8 September 1999 This collision occurred at approximately 5.20pm. Mr Pei Ting Cai was driving a Honda Civic along Devonshire Road heading towards the intersection. Mr Dennis Pittman was driving a small Mitsubishi truck north along King Street. I shall take the narrative from the COPS entry E 7189076, correcting grammatical and spelling errors and amending it to make it more intelligible: "[Cai] slowed to a speed of 40 - 45 kph as he approached the intersection. [He] saw the truck and stated that [it] was turning left. He then began to make a right hand turn. As he pulled out the truck and car have collided. [Pittman] … stated that he would always turn [left] into Devonshire, however he received a phone call. The hands-free was not working so [he] went straight ahead. He had his hand ready to put on his indicator. He continued through the intersection when [the Honda] pulled out and the two vehicles collided. The north section of King Street from the intersection is [a] no through road. It is possible that due to [Pittman's] pulling over to talk on the phone [that] [Cai] may have thought that he was turning the corner. [Cai] could not be sure whether the indicator of [the truck] was on. However he states the truck was turning. There was no independent [witness] to the accident. The truck was moved from the intersection before police arrived and was being inspected by the RTA. [Cai] had already been conveyed to Liverpool Hospital where he was treated for cuts to his head. There is no give way or stop [sign] for traffic turning right into King. There [are] lines marked out for traffic to turn right[.] This line [goes] into King Street. There is [a] give way [sign] on the north side (terminated street section) of King Street for traffic entering the intersection. However there is no [sign] stating that traffic heading north on King Street must give way or turn [left]. At the scene four [members of the] Highway Patrol were asked who would be at fault due to the road markings. Two stated [Cai] and two stated [Pittman]. Due to lack of evidence at the scene, the conflicting statements and the road markings at the intersection, no action will be taken unless advised [by] the Traffic Supervisor."

[125]

30 From Bringelly Road, King Street travels north for about 730m and then turns sharply (90o) to the left then travels westward for about 250m and then turns sharply to the right (90o) to go northwards again. Approximately 500m further north there is a T intersection with Wynyard Avenue. This is an ordinary T intersection. There is a street light on the south-western corner of it. About 700m further north is the intersection with Devonshire Road. 85m south of the intersection is power pole ID 145 onto which the RTA affixed the modified T intersection warning sign (that was probably easier than erecting it on a pole at 80m from the intersection, as Mr Kumar had requested). Exhibit C (a Terrestrial Photogrammetry survey) and Exhibit E (an unlaminated copy of Exhibit C) show pole ID 145 as a "pole with light" but that caption is incorrect: it ought be "pole with a sign." 49m further north is power pole ID 144 which is marked on Exhibit C and E as "pole with transformer and light." That is correct but it is common ground that on the evening of the collision the luminaire was not functioning. For how long it had been inoperative, the evidence does not disclose. According to Exhibits C and E, the DWBL starts just south of pole ID 144 which aligns with other evidence that pole ID 144 is 35m south of the intersection and that the DWBL commences 37m south of the intersection (rather than the 30m originally proposed by Mr Kumar). Whilst RRPMs ("catseyes") may have been emplaced when the work was completed on 4 December 1998, none is evident in any of the photographs taken by the Police on the evening of the collision (Exhibit B) or in any of the photographs taken in daylight on the following day (Exhibit D). I indicated to Counsel during the hearing that I was unable to see any evidence of the catseyes on the material before me and that I intended to make a finding that there were none on the evening of the collision. No one sought to persuade me otherwise. Assuming that they were in fact embedded on 4 December 1998 I can only conclude that they had been abraded from the surface of the pavement of the road by 25 May 2001. It is likely that that was done by vehicles (and more particularly heavy vehicles) driving over them although one cannot exclude the possibility that they were removed by errant schoolboys to be used as marbles! On the evening of the collision, they were not there to act as a visual cue to motorists at night of the presence of the DWBL. Chief Inspector Le Merton was unable to see any catseyes on his inspection of the scene (p.168). The curve in the DWBL commences 6m before the intersection. It is offset to the left. In the Road Safety Audit (Exhibit H) the then Sergeant Le Merton described it as "a slight kick to the left" and in his evidence as a "deflection" (p.239). The gap in the DWBL, to allow vehicles to make the theoretical right hand turn into King Street north is 6.2m (Exhibit T) or 6.5m (evidence of Snr Constable Kraefft p 31.05). Whilst there is evidence that the DWBL was faded (from a motorist and the Police involved in the collision on 11 August 2000 and from the Zajacs) all the experts in this matter accept that the DWBL was legible and the photographic evidence confirms that. However I do accept that in places the lines were obscured by skid marks laid down prior to this collision. An example of that is shown on Exhibit D10 (a photograph) showing a large black skid mark over the DWBL in Devonshire Road that could not possibly have been created on the evening of 25 May 2001, less than 24 hours before the photograph was taken.

[147]

46 At this stage it is appropriate to say something about Mr Finch's credibility. One can wholly understand that a person in Mr Finch's position, a driver whose truck collided with a stationwagon, killing two of its occupants, might either intentionally or unintentionally seek to exculpate himself of responsibility for the tragedy or to minimise his culpability. Mr Finch's evidence must, accordingly, be approached circumspectly. Exhibit CC is a transcript of evidence given by Mr Finch in the Local Court of Camden on 10 December 2002. Only the highlighted parts of that transcript are in evidence. However, it is clear that they were criminal proceedings and that Mr Finch was the defendant (to use the terminology then in use). This fatal collision has exposed Mr Finch to both criminal and civil liability, although it is obvious that as far as civil liability is concerned Mr Finch is indemnified. Mr Finch was called by Mr Stitt QC who was assisted in this regard not only by his junior Mr H.W. Stitt but also by Mr Heazlewood. I listened closely to his evidence and formed a favourable impression of him. I accept that he has done his best to tell me the truth as far as he perceived it, and as far as his memory allowed him. There were no significant inconsistencies in his evidence. He made a number of frank admissions contrary to his interest, to which I shall advert to in due course. Save for one matter which I shall refer to later, and for which there is good explanation, I have no hesitation in accepting his evidence. One telling piece of evidence, in my view, was given in cross-examination by Mr Semmler QC. Mr Finch was being pressed to provide his opinion of the maximum speed of the truck in gear 6. He said he would only be guessing. Mr Semmler QC asked Mr Finch to share his view about that with the Court. Mr Finch did not understand what was meant by that question. I them put this question and received this answer (p. 599.45): "Q. You drove this truck for a large number of months. Correct? A. Yes. It's been five years, Your Honour, and in that five years, I've seen many people trying to make me forget things, and now it us really hard to remember things. I know it makes your job even harder, but…"

[172]

47.7 Defects in the Truck and Trailer On 5 June 2001, the rig was inspected by Senior Constable Grant Bernard Henville of the Engineering Investigation Section. Inter alia, the Senior Constable has qualifications as a motor mechanic and heavy vehicle mechanic. Following upon that inspection he prepared a statement dated 27 August 2001. It is part of Exhibit Y. The relevant part of the report is this: "5. The accelerator was free and in the rest position with no tendency to bind on application. 6. The steering system consisted of a box type with power assistance. All front steering and suspension components were connected and in a roadworthy condition. I started the vehicle and I was unable to obtained full left lock. I then checked the power steering fluid reservoir and found the level to be low but serviceable. The vehicle was then driven into the pit area of the RTA for further examination with the assistance of RTA inspector John Goodwin. The front steer axle was jacked up so that the front wheels were off the ground and with the engine running I was still unable to obtain full left lock. The engine was then switched off and full steering lock-to-lock operation was obtained. The engine was re-started and full lock-to-lock operation was obtained. 7. The truck was fitted with a Hendrickson rear suspension system. The left front Hendrickson bush had excessive movement. There was excessive movement in the spring hangers and pins. The main leaf spring for the rear right spring was broken. The remaining rear suspension components were in a serviceable condition. 8. The truck was fitted with drum brakes fitted to all axles. The operation was of the full air type. The Maxi brake (park brake) switch was faulty and would leak air when the park brake was applied. Air would not leak from the switch when the park brake was released. All other truck braking components were in a serviceable condition. The truck was placed on a brake testing machine and the brake reading obtained from this vehicle, well exceeded the minimum requirement. 9. All tyres fitted to the road wheels of the truck were inflated and all tyres displayed roadworthy tread depth. 10. The truck was defected for the following faults:

[204]

67 All four experts agree that the Ford was wholly on its correct side of the carriageway at POI. This was illustrated by Senior Constable Kraefft by placing a piece of yellow paper on (eventually glued on) Exhibit E. The same point is made in Figure 2 of Mr Stuart-Smith's report (Exhibit T) and Figure 15 in Mr Bailey's report. Those opinions are consistent with the evidence of Mr Zadro that, as far as he could perceive, the Ford kept to its correct side of the carriageway. The only evidence to the contrary is that of Mr Finch. He drew on a copy of Mr Stuart-Smith's Figure 2, a rectangle in blue ink setting out his recollection of where the Ford was. This allows for the same POI but places the body of the Ford at a more acute angle to his vehicle, such that only the front left tyre of the Ford and half of the right hand side of the vehicle are on the correct side of the carriageway, as if Mrs Estephan had "cut the corner". This is the aspect of Mr Finch's evidence that I am unable to accept. One must bear in mind the mechanism of the collision. This is conveniently summarised by Mr Bailey thus: "After the initial impact, the large downward component of the contact force from the right side of the bull bar, acted to force the sedan downward so that many projecting areas came into contact with the roadway causing the gouge marks indicated on the police plan. The downward compression onto the roadway also prevented the sedan from moving away from engagement, so that as the front of the truck continued to override the right-front of the sedan, the sedan rotated anti-clockwise so that more of the right side came into direct contact with the bull bar as the forward speed of the sedan was arrested and its velocity was rapidly changed from mainly southward at perhaps 25 to 35 km/hr, to the speed of the truck in a 'north-easterly' direction. The time period for the main impact would typically be less than 1/10 th of a second, during which time nearly all the visible damage would occur and after this, the vehicle simply pushed ahead of the truck (as it slid and continued to rotate anti-clockwise) and the station sedan came to rest against the pole when almost stopped."

[245]

Q. Under deceleration? A. Deceleration, cornering, broadsiding - there's a number of different ways a vehicle tyre mark can be left on the road, depending on what the vehicle is doing itself. HH: Q. If violent enough and recent enough, you can still smell it. A. Definitely; and still see it too, sometimes, if you actually watch it in action. You see the smoke coming off from the friction of the tyre sliding on the roadway. The friction is creating heat. A by-product of the heat is smoke and the burning rubber smell. Semmler: Q. In respect of each of the tyre marks that you've marked with your device, to what extent did you test for this physical feel of the mark on the roadway? A. It's running your hand across it. It comes down to, as agricultural as it sounds, just the experience of knowing exactly what creates a tyre mark; and having done the experience myself through training processes, the experience of attending many scenes and doing that very thing is just a feel and touch test. You've got to get down on your hands and knees and crawl around and have a look. Q. And that's what you did? A. Yes. Q. All the marks, when you did that touch test, are they reproduced on that plan that's there in front of you, which is Exhibit C? A. Exhibit C, yes. Q. You mentioned the other indicium is the darkness or the clarity of the mark. What did you mean by that? A. The darker the mark, particularly if there is harsh braking involved, it will leave a darker imprint of the striations of the tread pattern on the road. Over time and weathering, the darkness fades, becomes duller, until eventually you just cannot see it any more, until eventually it wears away. It's not just done by the weather, it's done by other traffic driving over it; and, of course, the feel of it erodes very quickly. Q. When you say the feel of it erodes very quickly, in your experience, if you have a road like this with not continuous traffic on it, how long does it take before the mark has gone, or the feel of it has gone? A. I'd have difficulty answering that."

[249]

Photogrammetry does have some limitations. They were highlighted by Mr Bailey in re-examination: "Stitt: Q. You said in the course of some questions this morning to my learned friend Mr Semmler - and I think you repeated it later - about the range of accuracy of photogrammetry plans. Do you remember saying something in answer to Mr Semmler when he was putting propositions to you particularly in relation to markings north of cone 4? A. Yes, I do. Q. What were you referring to when you said it - I think you said it depended on the range of accuracy of the photogrammetry plan. What were you referring to? A. When I attempted to scale the width of the tyre marks, given that there were four tyre marks in a line so that I knew the outer marks were the outer tyres in a reasonable interpretation, the marks seemed to be a narrower width than I would have anticipated for a heavy vehicle. They seemed to be about 2.1 to 2.2 metres whereas I'd expect there to be about 2.4, 2.45. Q. How does the accuracy of the photogrammetry plan impinge upon that? A. I assumed that as the marks otherwise had the characteristic of a heavy vehicle with dual wheels that in fact it was an inaccuracy in the way that the marks had been recorded and transcribed onto the written document. Q. Is there an accepted range of accuracy of photogrammetry plans on the expert community? A. I'm not sure that there is an objective standard, but the nature of the process where the photographs taken not from an aerial perspective but from a terrestrial perspective are manipulated to give a view as though they were an aerial photograph introduces a level of uncertainty about what's the actual position of things. In other words, what might be a narrow line in a photograph becomes quite a broad line when the photograph is transposed, and so there then becomes the subjective element in the person performing the operation as to where they then draw the line which we see on a plan. HH: Q. Just as an example of that so I'm clear, you're saying that that's the very vice we have with the line you've marked X on figure 13. A. Yes, your Honour. Q. Where the black marks are much, for example, wider than the white line. A. Yes."

[251]

93 Greater detail and other aspects of the phenomenon were given in the evidence of Mr Bailey: "Q. Are you familiar with what has been discussed in this case before His Honour of skip skids? A. Yes, skip skids or simply intermittent braking. Q. What is intermittent braking in those circumstances and how is it caused? A. It can be caused by a number of factors. The most likely in this case where an unladen tri-axle trailer was being towed was that as the truck initially brakes, a short time later air becomes available to the trailer brakes and they begin to actuate. The front of the trailer begins to sway which causes usually the last axle, but possibly the last two axles, to have reduced weight applied to the ground at the time that braking begins. Q. When you say 'reduced weight', do you mean reduced downward pressure? A. Yes. Perhaps I could give a slight illustration just in a very simplified form. If a tri-axle trailer was represented by the rectangle and tyres by three circles, I'll draw a bar here, as the vehicle commences to brake there's a force on the road which is causing it to slow, but the momentum of the vehicle, its centre of gravity, is somewhere above, so if these two forces - in a sense it's a bit like the front wheel tripping over the road, it reduces - it tends to cause this wheel to go up, this less so, and a downward force here. This is a dynamic effect which moves forward on the springs. The braking knows nothing of what's happening to the dynamics. It simply applies a brake pressure which is sufficient for the continuous state of braking which will happen shortly later. So what happens is that this wheel is - for the weight it's now carrying - the reduced weight it's now carrying the rear wheel now has too much braking pressure so that it locks very quickly, but it's not - it may not be physically in contact with the road continuously or it may be simply such light contact in the road that we don't see any marks. So that there's a - if we physically watch this rectangle as it braked, it would rotate about its - well, in fact you're going to be about this point, but rotate forward slightly until it achieves steady state. Once it achieves the steady state, then all three axles are locked, and it will then produce a relatively continuous mark along the roadway, so there's a dynamic effect which occurs and is particularly noticeable with that configuration of trailer.

[285]

111 Objections to the Second Thesis In re-examination by Mr Semmler QC, Mr Stuart-Smith raised essentially four reasons why the second thesis should not be adopted, those objections being based on the skid marks themselves. I granted leave to Mr Stitt QC to further cross-examine him on this issue. I shall discuss these objections separately. (1) There are no skip skid marks on the left hand side Mr Stuart-Smith said he could not see a left side skip skid mark corresponding with the right side skip skid marks which he highlighted blue on Exhibit E (p. 498) but later in re-examination conceded that left-sided skid marks may not have been sufficient for the Police to be able to detect and record them. He said that that was "the most likely explanation" (p. 506). In further cross-examination he was shown Exhibit V, a blown up copy of photograph Exhibit B7 which shows on the on the left side of the skip skid marks a black parallel line which appears to me to show 2 skid marks, one on top of the other, a continuous light black line and a darker intermittent line, which has been marked with a continuous white line of lime. This evidence was given: "Q. Do you agree with me that, looking at Exhibit V, it's not accurate to say that that line is a continuous skid mark, is it? A. Look, you can't really tell whether it's continuous or not there. I agree with you it's not accurate to describe it as having a continuous density of blackness. Q. What it does show is that there is varying density of blackness in short lengths down the length of the line as marked with chalk. A. Correct. Q. Entirely consistent with the pressure of the wheel being down and then up and then down and then up. In other words, greater pressure followed by lesser pressure followed by greater pressure followed by lesser, downward pressure. A. Yes, it would be consistent with that. Q. That is the classic skip-skid dynamic, is it now? A. No, the classic skip-skid would have corresponding marks- - HH: Q. No, 'The classic skid-skip dynamic', was the question. Stitt: Yes, I - yes Q. That would be, do you agree, or that is, the classic skip-skid dynamic? A. Yes." From my examination of Exhibit V and bearing in mind this concession, I do not accept this objection as valid. (2) The distance between the skip skid marks at cone 8 is "too close" In re-examination Mr Stuart-Smith said: "A. The width between the outsides of the wheels of this trailer and of most trailers of this nature is typically about 2.1 metres or so from outside wheel to outside wheel. And that's roughly about somewhere around 2 to 2.1 metres, I'd expect the width of the skip-skid marks to be. If I look at these the distance between the more continuous left side mark and the right side mark is more like 1.7 metres. It corresponds more to a line just to a right side being just over the centre line, not to the skip skid marks which are just on the left of the centre line. So that's one point that the width is much narrower than I would expect." The line on the right hand side has been highlighted green on Exhibit E. In further cross-examination the question was raised as to whether such skip skid marks were laid down by the outer wheels or inner wheels of the trailer (pp. 510 - 515). Mr Stuart-Smith agreed that the total width of the dual wheels on one side was approximately 0.5m and that the distance between the inner surface of each of the dual wheels was approximately 1.4m (p. 514). The questioning continued thus: "Q. So that if the point on which the skid mark was laid down by the tyre is approximately the medium point of the tyre, then the distance between the two skid marks is approximately 1.5, 1.6, is it not? A. Yes, it could be. From between the centre of inner to the centre of inner. Q. Which is very close to 1.7, that you said you assessed these skid marks. A. Yes, it is very close. Q. But you t hen went on to say that that dimension was such as to be too narrow to make it consistent with it coming from the one vehicle. A. Yes. Q. Do you agree with me that on the process of reasoning that we have just gone through, it is not too narrow at all, is it? A. Yes, I went through another process of reasoning. Q. But on the process of reasoning that you and I have just been through, it is not too narrow at all, is it? A. Not on that process of reasoning, no." Mr Bailey was cross-examined on this issue by Mr Semmler QC and did not agree that the distance was too narrow. He said that the marks were consistent with having been made "by the inner tyre set". In light of Mr Stuart-Smith's concession and the firm evidence of Mr Bailey, I do not accept that this objection is valid. (3) The left hand skid marks line up with the trailer whilst the green highlighted line leads to the truck I have already referred to the skid mark(s) highlighted green which include the skip skid marks in the first objection. There is an obvious line of skip skid marks to the left of the green line, which has been highlighted orange. There is a gap between the right side skip skid marks commencing near cone 8 highlighted blue and the commencement of the orange line of 7 metres. Mr Stuart-Smith projected the green line to beneath the truck at rest and the orange line to the left rear side of the trailer. In further cross-examination Mr Stuart-Smith gave this evidence: "Q. Can we come now to your third reason, which is the question of continuous mark and the direction in which it runs. A. Yes. Q. So that I am clear, your third reason is predicated on the proposition that the left-hand continuous mark on Exhibit V is not consistent with the left-hand side wheels of the trailer. A. Correct. Q. And what are you saying is that the continuous mark leads up to a point which you say is not the left-hand side of the trailer. Is that accurate? A. Yes. Q. It's that distinction which comprises your third reason. Is that correct? A. I can't remember what number reason it is, but it certainly comprises a reason. Q. There were three that you gave and - well, I'll move on. You made it clear, I think, in your evidence that once there was impact between the car and the truck, the trailer, which is affixed at the back of the truck, would perform motions or dynamics which may be difficult to predict with certainty, because of the force of the impact. Is that correct? A. That is correct. Q. Is it also correct that the fact that the trailer was affixed to the back of the truck with the towbar and had no steering wheels also a factor in deciding that the movement of the trailer after the impact becomes problematic? A. Look, I don't know that that fact that it's not steerable makes it any more or less difficult to predict the type of marks that it would have left on the road. That's really what we're talking about when we're saying 'problematic'. I accept that the movement during and after impact means that there would be a change in forces and, consequently, tyre marks could well be different and vary. Q. It's plain, however, that there were considerable dynamic forces in operation after the impact between the truck and the car, as evidenced in photographs B7 and B8. A. I would agree with that. Q. Those considerable dynamic forces involved the following. After the impact, the truck jack-knifed or slewed around with the rear of the truck going clockwise and the front of the truck similarly going clock-wise, finishing up in a position as shown on photographs 7 and 8. A. That's correct Q. Similarly, the forces that were generated in the collision indicated or dictated that the trailer remained, at rest, facing north. A. Yes. Q. But in order for the trailer to reach that position and the truck to reach that position, you agree that the rear of the truck had, after impact, to move to the left? A. Yes, rotate clockwise. It actually - - Q. I'm just asking you, do you agree that, after impact, the rear of the truck moved to the left? A. That's slightly ambiguous, really. Relative to its centre of mass, it has certainly moved to the left. Q. That's what I'm asking you about. Relative to its centre of mass, the rear of the truck moved to the left. A. Yes. Q. Because of the attachment by the towbar, do you agree that the front of the trailer would similarly be moved in that direction? A. Yes. Q. And because the truck continued to rotate and reach the point as shown in Exhibits 7 and 8, the front of the trailer would be pulled back to the right, into the position where it came to rest, as shown in 7 and 8? A. I don't know that there's any sort of significant degree of pulling back. The trailer was pretty well gone straight ahead, but maybe with the slight deviation to its left, whereas - - Q. I am suggesting to you that there was this two-directional movement of the trailer after the impact, namely, initially to the left, and then either to the right or back to a straight ahead position where it reached at rest. Do you agree with that? A. To a very, very slight extent, I do. Q. Let me suggest to you that that is precisely what the enthusiastic Sergeant Kraefft chalked on the road, a series of skid marks which show the trailer deviating to the left and then coming back to the right. And please look at Exhibit V, if you need to do so. A. Yes, he has, to a very slight extent. That exaggerates the degree because of the telephoto nature. If I look at the photogrammetry plan, I can see the same deviation. It's more of a slight deviation to the left and then a straightening really, rather than a - - Q. You see, what I'm asking you about is the commencement of the deviation to the left by the trailer. That would occur, would it not at impact or immediately after impact. A. Pretty close, yes. Pretty well at impact or just after. Q. So that the fact those skid marks in photograph B7 deviate away to the left and then come back slightly to the right is consistent with the passage of the trailer after impact. A. Yes, it is, yes. Q. And that would explain, would it not, the two kinds of skid marks which Kraefft has chalked in; namely, the dotted ones down near cone 9 which lead around to the left and then back to the right. A. Explain - I'm not sure what you mean - the two types, it explains those and what's the other type? Q. To the left - the dotted chalk marks to the left of the continuous line which plainly move to the left and then come back to the right, that would explain that dynamic movement, would it not? A. Yes, it would. Q. In other words what caused it was the force of the impact. A. Yes, and braking. Q. What brought it back was the jack-knifing effect of the truck as a consequence of the impact. A. Yes, the dynamics of the post-impact movement, yes. Q. With those dynamics as roughly drawn on the road in chalk, would you agree, that after there is impact it becomes difficult then to be precise about what is continuous and what is broken skid marks as evidence by the chalk, in evidence V? A. Yes, I would agree with that." Mr Bailey was cross-examined on the same issue. On a copy of Exhibit B7 printed in his report, he marked the green line X and the blue line Y. "Semmler: Q. Would you agree the line you've marked with an 'X', after curving slightly continues to a point which is the place of rest of the trailer? Indeed, it may even go beyond that, but it certainly appears to be heading towards the driver's side rear wheels of the trailer. A. I agree that the white line that's shown is a prolongation of what I've marked as X. It curves to the left back to the right and it appears to terminate near the rear axle of the trailer at rest on the right side. But absent - but without being able to see photographs of the marks on the road before they were marked, given that there are so many marks on this photograph, there's equally a number of lines which travel from tyre mark X to the left side. Now, I know that at some point pre-impact all the tyres of the vehicle would be travelling along essentially coincident paths. Q. Thankyou for that. But look all I was asking - I wasn't asking for a justification of your analysis. I was simply asking whether you conceded that the line marked with the X continued on and appeared to at least go towards the driver's side rear wheels of the trailer, if not beyond that. A. I don't accept that because - - Q. You don't accept that? A. - - that not what I marked with X. With X I was really talking about different things. Q. All I'm asking you to do is have a look at the photograph and agree that the line you've marked with an X appears - it goes straight - or relatively straight for a period, and then itself lines up with what we can see heading off into the distance in a slight S shape a line which ends - or appears to go to the driver's side trailer wheels. A. I agree that the white line visible in Exhibit V does that, but I marked with an X the tyre mark on the road, as I discussed it, and I can't tell from Exhibit V where that tyre mark goes. Q. Wouldn't you agree that it looks likely that the slight S is a continuation of the tyre mark which has been chalked in and is now X on your diagram? A. No, it doesn't look likely because the tyres from the left side of the truck must have moved to a similar position laterally down the road. See, all the left-side wheels were originally going along - in a broad sense - all the left-hand wheels of all axles, truck and trailer, were all going past X or thereabouts. At some point post impact the left wheels of the truck which continued to skid move so that they are now in front of the right wheels of the trailer. But there are other white lines in Exhibit V which diverge from near the tyre mark X and go to the left side of the trailer. Q. You believe that those lines diverging to the left are the lines created by the trailer tyres, don't you? A. Yes, I do. Q. But what I'm suggesting to you is that the line marked X which I also suggest to you continues in a slight S shape up to at least the driver's side rear wheels of the trailer was probably created by skidding wheels of the truck itself rather than the trailer. What do you say about that? A. I'm sorry could you repeat that. I may have misinterpreted what you said. Q. The line marked X. A. Yes. Q. The line marked X was probably created by the skidding tyres of the truck. HH: I think you mean the line marked Y, don't you? Semmler: No, your Honour, I mean X. Q. Do you accept that or not? A. I'm not sure I know what I am being asked here. I just need to - - Q. Can you see - - A.- - clarify things. Q. Can you see the line with the X on it? A. Yes. Q. Is it possible that was created by the truck and not the trailer? A. Yes, that's a possibility. It's a low, - I discussed that, and it's a low probability. And it's a high probability that the intermittent tyre mark - that's the tyre mark that I marked with an X - was created by the trailer. Now, that's near the point X, once it progresses. I just think - you need to be very careful what can be drawn from Exhibit V. Q. What I'm suggesting to you is given that the marks to the left of line X, which you believe were created by the tyres of the trailer post impact, given their position, as against what appears to be the continuation of line X, it is most unlikely that line X represents the trajectory of the left-hand side of the trailer? A. I don't agree with that. Q. Because if it leads up to the right-hand wheel of the trailer, and it's all the one marking, it's undoubtedly not the left-hand side of the trailer, is it? A. I don't believe it's all the one marking; that's what I'm trying to say. And I just don't think there's the information in Exhibit V to make that." Bearing in mind Mr Stuart-Smith's concessions and Mr Bailey's assertions it is very difficult to draw any firm conclusion about this objection. It does not of itself cause me to reject the second thesis, if there be other grounds for its adoption. (4) The 7 metre gap between the blue and orange skid marks In re-examination, Mr Stuart-Smith said this: "Q. Is it possible that you can have, in effect, a skip skidding mark created by the driver's side wheel at one point, and then at a point further north, as it's proceeding north, the passenger side trailer wheels create that line which is at the western most extremity of this photo, Exhibit V? A. Well, I would expect if it was skip skidding due to just the application of brakes, that there could be a change in - it could happen on one side at a different location from the other side. But I would still expect it to be within reasonable proximity. The actual gap between the start of the skipping on the right and the actual start of the left side tyre marks which I have drawn in orange is about seven and a half metres, and would think that would be unusually long for skipping to occur without skipping to occur on the other side." In discussing the third objection, I referred to this gap as that between the blue line and the orange line. This objection misses the mark as the second thesis is based on there being skip skid marks on the green line at the same level as the undoubted blue skip skid marks. At p. 522.16 Mr Stuart-Smith accepted that this was not a valid objection to the thesis.

[287]

112.1 Timing I have already pointed out at [38] and [63] that Mrs Estephan could have turned from Devonshire Road into King Street in 2 seconds. Mr Bailey quoted the Austroads Guide to Traffic Engineering Practice Part 5 - Intersections at Grade, Table 4.3 as stating that 4 seconds is listed as the Critical Acceptance Gap for traffic making a right hand turn at a T intersection when the vehicle starts from a stationary position. The Ford did not stop - that is the evidence of Mr Zadro and Mr Finch. If there were 3.9 and 4.9 seconds between Mr Finch's perceiving the danger and the POI, this accident would not have occurred as there was more than adequate time in which Mrs Estephan could have safely completed her turn. Mr Bailey made this point at p. 29 of his report. Mr Jamieson was cross-examined about the time involved and at p. 374 accepted that Mrs Estephan could complete her turn in 1.5 seconds and that there were at least 3 seconds involved in the position adopted by him for Mr Finch. Mr Stuart-Smith was cross-examined on this as well and eventually this point was reached: "Q. If in fact the skip skidding immediately north of cone 4 was the relevant indicia of braking, we have to go south for a distance represented by two seconds in time to reach the point at which the driver perceives a danger. Is that correct? A. Yes. Q. That then takes the position at which the driver perceives a danger at how far south of cone 4, or cone 3 if you prefer? Let's stick to cone 4. How far south of cone 4 would the truck have been two seconds earlier, on your hypothesis. A. 50 metres. HH: Q. Yes, because 90 kilometres per hour is 25 metres per second. A. Yes, you Honour. Stitt: Q. It's at that point that the driver, you say, would have had to perceive a danger, react to the danger and respond appropriately. A. If that is what he was doing, yes. Q. If in truth the driver was responding to the car entering the intersection, then your dimensions simply don't add up, do they? They don't stack up on that scenario, do they? A. No, not in a conventional sense they don't - not with that scenario."

[297]

Most matters raised in the report, I have already canvassed. The final section of the report is this: " LIGHTING Street lighting is of the white fluorescent type typically on every second light pole. There is an additional light attached to a pole sub-transformer on the southwest side of the intersection, however, that light globe has failed. Due to the nature of the intersection the lighting provided appears substandard. Street lighting erected along the eastern side of King Road gives the impression of a straight, continuing road. ALIGNMENT There is a drainage culvert under Devonshire Road on the western side of the intersection, with raised concrete surrounds. Due to tight geometry of the intersection, the rear of long vehicles track into adjacent lanes. Trucks travelling east on Devonshire Road turning right into King Road attempting to stay on the pavement cut across the middle of the intersection. Trucks travelling north on King Road turning left into Devonshire Road are required to move close to the centreline (in some cases over it) to make their turn, in order to prevent the rear of the truck or trailer tracking off the road surface and running over the raised concrete portions of the drainage culvert. Recommendation 7. Erect oversize 'Give Way' signs (x2) in King Road, facing northbound traffic at the intersection of Devonshire Road and paint a 'Give Way' line. 8. Relocate the 'No Through Road' sign on the northwest corner facing northbound traffic in King Road to an adjacent power pole and raise its height. 9. Repaint 'Give Way' lines in King Road, facing southbound traffic and the small intermediate section of double line to the standard shown in the diagram applicable to Australian Road Rule 73(5). 10. Repair the faulty overhead street light on the southwest corner of the intersection. 11. Investigate an upgrade of lighting at the intersection. 12. Investigate possible need for realignment of the intersection to improve the geometry, due to the tight turning manoeuvres created by the drainage culvert."

[306]

122 This question must undoubtedly be answered affirmatively. He failed to keep a proper lookout. He ought to have observed and heeded the information contained in the modified T intersection sign. Even if it did not convey to him that he had to turn left into Devonshire Road, it warn him that he would have to give way to traffic turning right out of Devonshire Road. Mr Bailey gave this evidence about, firstly, the visibility of the sign itself, and, secondly, when it becomes legible: "HH: Q. With lights on low beam, from what distance would a driver be able to perceive that there was an advisory speed sign there? Forgetting what it said. A. Thank you, your Honour. I recall that now. Objectively, truck headlights are the same type of lamps as sedans and come under the same ADR, Australian Design Rules. The design rules require that low beam head lamps have a sharp cut-off between light on the bottom, dark on the top. That sharp cut-off must have an initial inclination between 1 per cent and 1.5 per cent. That means that for an average which is quite typical for vehicles of about 1.3 per cent, the sharp line on low beam will reach 50 metres ahead on the road. Now, there is a lesser level of light which comes in the dark portion above the sharp cut-off, and so, using that portion, it would be possible to see a reflective sign in good condition - in other words, to recognise the characteristic diamond and yellow characteristic - from perhaps 100 metres or perhaps 150 metres. In other words, to recognise a sign coming up. Stitt: Q. In your opinion, in those traffic conditions, in those prevailing conditions, at what distance would the legibility of a sign such as this modified sign be available to the driver? A. That will depend on factors such as the eyesight of the driver, the actual effectiveness of - the intensity of his headlights, and the contrast which the sign will provide him. Mr Finch said that his eyesight was good. Assuming that his headlights operated to roadworthy standards, I couldn't put a maximum range, but I could say that by 50 to 60 metres he would begin to be able to interpret what the sign - he'd be able to begin interpreting the sign."

[309]

125 Mr Finch was cross-examined about a large number of "visual cues" which, it is alleged, he ought to have seen prior to a point of danger being reached and that in failing to see them and react to them he was negligent. I am not persuaded about any of these. They are: (1) The back of the Give Way sign facing traffic travelling south on King Street on the eastern side of King Street. This is described at [31]. It can be seen in photograph D4 taken in daylight. It cannot be seen in Exhibit B as it is obscured by the vehicles at their resting places. Even if it were, one must remember that those photographs were taken with the aid of artificial light. This sign is 18m north of POI so at the time Mr Finch perceived the Ford, (77m south of POI) it was 95m from him, to his right, at the side of the carriageway and there is no suggestion that it had a reflective surface on it back. Bearing in mind what Mr Bailey said about visibility on low beam, I find it impossible to accept that Mr Finch would have been able to see it prior to turning his attention to the Ford. I entirely agree with Mr Stitt's submission that this was a ludicrous suggestion. (2) The 'No Through Road' sign. As I said at [31], that sign appears to become legible from about 40m from it. The first of the skid marks laid down by Mr Finch's truck is 43m from this sign. When Mr Finch first perceived the Ford he was (43m + 55m) 98m from this sign. It was illegible to him. The oblong shape and reflective surface would mean nothing to a motorist - it might have been a sign forbidding the dumping of rubbish. Furthermore by the time Mr Finch reached a point where the sign was legible the emergency was already occurring. Again, the following is said in the "Road Safety Audit" and has been repeatedly given in evidence: "The No Through Road sign on the northwest corner of the intersection has been erected at a low height and it was observed by those present, that the sign was obscured by large family cars i.e. Ford Falcon sedans coming out of Devonshire Road." The passage of the Ford obscured the sign at precisely the time it would have become legible, but at that time Mr Finch's concentration was on and ought to have been on the Ford. (3) 'Devonshire Road' street sign The position of this sign is stated at [31]. It is erected at a high level. It can be clearly seen in Exhibits B7 and V. In those photographs, the truck is seen in its immediate foreground. Photograph B10 makes it clear that the truck is in front of it. It is clear that the sign is at a height of 1.5 times the height of the truck. High beam would have needed to be engaged to read it. In any event, it tells a motorist nothing about the priority at the intersection, it merely indicates a T intersection, a fact which was clear to Mr Finch when he first perceived the lights of the Ford approaching from the left. (4) The street light on the corner of the intersection. Again, the streetlight tells a motorist nothing about the priority of the intersection. It is off set from the line of luminaires south of the intersection and from the line of luminaires north of the intersection. However, that offsetting would have been less obvious because of the failure of the last luminaire south of the intersection. Furthermore the luminaires were all the same. After the collision this lantern was replaced with a much stronger luminaire and one of a different colour. If that had happened prior to the accident, one could see some force in the submission. Again all this luminaire did at most was to indicate an intersection, not a modified T intersection.

[334]

146 In discussing "the most likely cause of events leading up to the accident", Mr Jamieson commenced thus: "Traffic engineering design is based on empirical as well as experimental research undertaken over some fifty years - involving observed and researched driver behaviour inter-relating with different road environments. Traffic engineers have thus developed various 'expected driver behaviours' for differing road circumstances. Using this knowledge, engineers have for decades modified the road environment to safely guide motorists through different situations. This is done by a combination of: - geometric road design, - standard signposting, - standard line marking, - standard street lighting and other elements. In this instance, the material reviewed suggested that the truck driver had been previously briefed to travel straight ahead on this section of road until the first opportunity to turn right. This instruction, combined with the driver's unfamiliarity with the road, and with the perspective line of the street lights discussed earlier, would mean that he would have assumed the road on which he was travelling (King Street) was the primary through route. Therefore, any traffic approaching him on his left would 'need' to give way to him. It therefore would be expected that Mr Finch approached this site at his cruising speed without slowing. At the same time, Mrs Estephan who was reportedly a local resident, had been approaching this site with the presumed understanding that the main through route was the route connecting King Street and Devonshire Road. It is presumed that she had previously used this route on many occasions and as such, would be aware that most (if not all) of the traffic approaching from the south on King Street (on her right) would be turning left onto Devonshire Road. Indeed, based on the density of the settlement to the north of the site, it may have been the case that Mrs Estephan had never encountered a vehicle travelling through this intersection to the north of the site. Therefore, from a traffic engineering viewpoint, it would be expected that that a local driver would be approaching this site initially about 50 km/h (with reference to Figure 6), slow to about 20-30km/h, then gradually turn right into King Street in order to travel south."

[345]

157 As I have mentioned, Mr Stuart-Smith was retained by the NSW Police Service, probably for the prosecution of Mr Finch. He was not qualified to discuss the negligence of the LCC. Nevertheless, he said this in his report under the heading "Intersection Discussion": "At the time of the crash the combination of road geometry, traffic control devices and street lighting combined to create an inadequate and ambiguous intersection environment, particularly at night for drivers using low beam. For northbound drivers on King Street who failed to observe the Modified Intersection warning sign, the intersection would be difficult to detect. In addition, the slight curvature of the northbound centre lines created a Right of Way ambiguity. By designating King Street south and Devonshire Road as the 'major road', in combination with the curve in the centre lines, technically this route can be regarded as a single road with King Street north as an intersecting road (requiring northbound drivers from King Street to perform a partial right turn and thus yield priority to Devonshire Road). On the other hand, the intersection has elements of a conventional T intersection with a different priority, should northbound drivers attempt to travel straight ahead without deviating. The movement from northbound in King Street (the major road) to northbound in King Street (the minor road), through the intersection, could be considered a straight through movement or a right turn. Nonetheless, it would appear that the legal ambiguity relating to priority was not the primary issue in relation to the crash. Although Mr Finch's intended direction has not been reported, it is probable that he intended to travel with the major road, which would have required a left turn from his northbound approach. On the other hand, had Mr Finch intended to travel across the intersection, the Falcon had passed the break in the centre lines at the point where Mr Finch would have been required to partially turn into the King Street minor road portion. Consequently the priority ambiguity was not a specific issue. However, the hazardous nature of the intersection (which is related to the legal ambiguity issue) most likely contributed to the collision. At the time of the crash, northbound traffic were faced with one primary indicator that the road turned to the left, a Modified Intersection sign (left turn sign with straight ahead minor road). The sign lacked a complementary Advisory Speed sign. A No Through Road sign, curved double centre lines and a Holding line were of significance either after the warning sign had been interpreted, or as a driver approached closer to the intersection. Street lighting was not sufficient to illuminate the intersection for a reasonable distance, although this would not have been as significant for drivers using driving lights and high beam, as was likely the case for Mr Finch. The continuation of the street lights on the minor King Street Road could have encouraged the view that the major road continued beyond the intersection. The centre line curvature would not have been visible until the late stage. Under such conditions it could have be expected that the intersection would suffer a higher accident rate than other intersections with similar traffic flows. Notwithstanding the poor intersection environment, the Modified Intersection warning sign, indicating a left turn, located 85 m before the intersection should have been clearly visible to northbound motorists. The degree of reflectivity should not have materially affected its ability to be seen, particularly for drivers using high beam."

[349]

161 Mr Bailey's report contains these comments: "1) Modified Intersection warning sign (Black on Yellow W9-1L) which was located on a pole approx 85 metres from the intersection and reportedly in somewhat faded but still in reasonably legible condition. Because the Modified Intersection sign is used infrequently and differs from the frequently encountered Side Road Junction sign (W2-4), only by the (i) addition of a taper to the branch road leg and (ii) width reduction of the vertical extension, there is a real risk that the variation will not be readily perceived by drivers. The risk will be substantially increased when: s The sign is used in isolation - that is when no other indicators are reasonably detectible in the drivers field of view to indicate a critical change to traffic rules s Lighting conditions are poor, such as at night when normal fading has occurred and the sign is lit only by headlamps. Mr FINCH says that he did not see the sign at all and this may reflect either that he did not notice the sign at any time or that he had noticed a sign, but had no later recollection - in the latter case, there was the real possibility that in failing to identify the sign as a modified intersection type, its presence served to reinforce an incorrect perception that the vehicle had right of way. 2) Curving of the double unbroken centreline at the intersection. Police plan indicates that the lines curve to the west by approx 0.9m over approx the last 6 metres on the southbound approach to the intersection before breaking for a distance of approx 6 metres. The lines appear to have been in faded but serviceable condition at the time of the police attendance and their conspicuousness in Mr FINCH's field of view would depend largely on his distance from them and the range/effectiveness of his headlights. There is no realistic possibility that the slight curvature could be readily seen whilst the Modified Intersection warning sign was in sight. (Refer Figure 6) At whatever distance the centreline curvature did become visible, it is not clear that many road users would be aware of the critical change in traffic priority because (i) it is a rarely encountered traffic control device for most users and (ii) the NSW RTA handbook advice for the modified T intersections, shows the give way vehicle turning through the marked centreline and states that the continuing road (which is marked with broken white lines) goes around the corner … (see below) and (iii) in the context of a somewhat broken up, sealed road in a semi-rural area, the deflection may initially appear as simply a distortion of the road surface."

[353]

164 When giving evidence in chief Mr Bailey said this about the modified T intersection sign: "HH: Q. I myself would have difficulty interpreting the sign, even with reading glasses on, on the photographs. I think one of the problems is to working out the difference between the ordinary T intersection sign, W24, and the modified T intersection sign, the W9.1L. A. Yes, your Honour. Q. Now, at what distance - for example, it could have been a level crossing sign, which would be very easy to distinguish, but when you've got two similar sorts of signs, at what range, given normal eyesight and adequate lighting, would an adult be able to interpret the difference between similar signs like these? A. When you say to interpret the difference - there's a difficulty for me there, and could I explain what the difficulty is? Q. Yes. A. A sign doesn't just switch on. It wasn't over a crest. It simply emerges. So that a driver goes from a position at which he sees a backboard, and realises there's a sign. As he approaches this particular sign, the Modified Intersection sign, it initially appears indistinguishable from the standard T intersection. Your Honour alluded to it in - I think it's Exhibit B1. Q. Yes. A. That even under full flood lighting, with a photograph, with a static image, it's essentially indistinguishable from the standard sign. A driver who focuses their attention, focuses the central one degree, spheroidal degree, of their eyesight on something. As I look at you Honour, my one degree extends approximately to the width of your chair or a little less. And so even though I'm aware and my brain has an image of the other things in this room, I can't tell as they change because they are in peripheral vision. My visual acuity or human visual acuity reduces rapidly away from the 1 per cent so that a driver who initially identified a sign as very familiar type and then directed their attention, their foveal vision, the things that they were looking at, away from that sign, I doubt that there would be a sufficient stimulus in peripheral vision to attract attention away even forgetting the issue of expectation, that it would simply be a blur, indistinguishable in peripheral vision at all times."

[355]

166 Finally, the consideration reached in the Lighting Appraisal should be considered: "From the material examined, it is apparent the intersection at King Street and Devonshire Road has had a history of problems due to the number of accidents and complaints from the local residents in the past. Liverpool City Council was aware of these problems and in response requested that the lighting installation be upgraded on several occasions between 1991 and 2001; 1. Packet No. 5, Letter from Liverpool City Council to Prospect Electricity dated 24 January 1992 for the addition of one 80 Watt mercury vapour luminaire on King Street north of the intersection with Devonshire Road. 2. Packet No. 5, a letter dated 12 May 1999 from Liverpool City Council requested the upgrade of street lighting at King Street Rossmore by Integral Energy. The lighting category nominated by Liverpool City Council was Category B2 in accordance with AS/NZS 1158:1997. 3. Packet No. 5, Letter from Liverpool City Council to Integral Energy dated 18 July 2000 for the addition of four 80 Watt mercury vapour luminaires on King Street north of the intersection with Devonshire Road. However, no attempt was made to review the existing lighting on the approach roads and at the intersection in conjunction with the traffic control measures and advisory signs. This has resulted in numerous piecemeal lighting designs being undertaken in isolation on various parts of the surrounding roads without reference to the intersection as a whole. To compound matters, the most recent lighting designs undertaken by Integral Energy prior to the accident clearly did not comply with Category P5 to AS/NZS 1158.3.1:1999 as nominated by Liverpool City Council. Assuming the first defendant was unfamiliar with the surrounding roadways compounded by the dark surrounds and the poor road lighting installation, this would have made sighting the intersection and any conflict points on the approach to the intersection very difficult."

[356]

167 I have no hesitation in concluding that LCC, through its various traffic engineers, was negligent in failing to do in 1996 and 1998 what it did immediately after this collision in 2001. That is the opinion of Mr Jamieson. An alternative arrangement was that proposed by Mr Bailey. The minimum requirement, in light of the possible ambiguity of the modified T intersection sign, the possibility of its being misinterpreted, was the erection of Give Way signs at the intersection facing traffic facing north and the painting of a holding line at the intersection across the northbound lane of King Street. It is noteworthy that Mrs Nicholls requested a Give Way sign on 26 May 1992, Mrs Camilleri requested it on 31 October 1996 and Councillor Harrington requested it on 14 April 1998. This is not a benefit of hindsight finding, it was at least since 1994 proper road traffic engineering practice. Furthermore, a tribunal of fact is entitled to look at what was done after an accident to eliminate or minimise a risk, to see if that risk was foreseeable prior to the accident: Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 at 214. The street lighting north of the intersection increased the need to adopt additional measures to reinforce in a motorist's mind that priority at this T intersection had been modified. Merely adjusting the line marking to comply with the diagram for Australian Road Rule 73(5) or painting the line over the gap left in it, as suggested by Mr Bailey, would be insufficient because of problems with lighting of the intersection at night and cars travelling with headlights on low beam with, effectively, only 50m forward vision would not see the line marking in adequate time, as the experts suggest. Signs were called for and, the cost of those was minimal. The problem with the intersection is highlighted in two illustrations in Mr Bailey's report, Figures 5 and 6. Figure 5 is a view northwards towards the intersection taken before the 'Give Way Sign Ahead' sign taken after the works of 2001 were completed. The photograph was taken at night from a sedan travelling with headlights on low beam. Mr Bailey acknowledges in his report that there are limitations with such a photograph, but it is indicative. Figure 6 is the same photograph with some visual stimuli removed, to seek to replicate the view that Mr Finch would have had on the evening of the collision. However, Figure 6 still shows the extra large 'No Through Road' sign erected after the collision and the yellow high-pressure sodium luminaire installed after the collision. Accepting the limitations of the photographs and noting that it has visual stimuli in it different to those confronted by Mr Finch, Figure 6 is in itself telling evidence of very poor traffic engineering.

Estephan v Lynsey Finch and Ors

At a glance

Court

Decision date

Source

Judgment (380 paragraphs)

Parties

Cases Cited (6)

Cited By (1)